Ehrlich order related to writers affects `thousands,' Sun argues

February 10, 2005|By Stephen Kiehl | Stephen Kiehl,SUN STAFF

Attorneys representing The Sun argued yesterday that "thousands upon thousands" of state employees are subject to Gov. Robert L. Ehrlich Jr.'s order barring contact with two Sun journalists -- many more than the 225 employees the state says fall under the directive.

Lawyers for the governor argued in a memorandum last week that the order applied only to top state officials who were in "confidential and policymaking" positions. The Sun lawyers said in a response filed with the court yesterday that the ban is much broader and "encompasses virtually the entire Executive Branch."

The Sun also argued that by attempting to limit the scope of the order, the state was effectively conceding it was unconstitutional in its original form. The newspaper's lawyers wrote, "Defendants cannot now ask this Court to rescue their unconstitutionally overbroad actions by narrowing the scope of their directive."

Ehrlich issued the original order in November. It said that "no one in the Executive Department or Agencies" was to talk to Sun State House bureau chief David Nitkin or columnist Michael Olesker. The governor has said the two writers were not objectively covering his administration.

The Sun filed a federal lawsuit in December asking that the order be lifted, saying it violated the First Amendment rights of the two journalists by denying them the same opportunities to seek information as other news organizations and citizens.

At a preliminary hearing last month, U.S. District Judge William D. Quarles Jr. asked for clarification on who exactly is subject to the ban. Now that the state and the newspaper have offered their arguments on that question, the case is in the judge's hands.

Quarles must decide whether to grant The Sun's request for a preliminary injunction to lift the ban while the newspaper's case against the governor proceeds. The state has asked for the case to be immediately dismissed.

Margaret Ann Nolan, chief of litigation for the state attorney general, declined to comment yesterday on The Sun's filing.

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